Just saying 'no' to sex means it becomes rape, judges rule

By Auslan Cramb, Scotland Correspondent

12:01AM GMT 23 Mar 2002

THE definition of what constitutes rape in Scotland was changed yesterday when judges ruled that it was enough for a woman to say "no".

The landmark decision, which was called for by Scotland's most senior law officer, was prompted by a controversial case in which a student was acquitted of rape because his alleged victim had not put up a fight.

In a majority ruling, appeal judges overturned the requirement, established 143 years ago, that the attacker must use force before he can be accused of rape.

Lord Cullen, the Lord Justice General, said: "The court holds that the general rule in the law of rape is that the act is constituted by a man having sexual intercourse without her consent."

The judges decided the criminal intent to rape was present when a man knew that a woman was not consenting, or was "reckless" about whether she was consenting.

Lord Cullen added that an absence of consent should be presumed in the case of girls under 12, and where a woman was incapable of giving consent.

The clarification of the law brings Scotland into line with England, and was widely welcomed by politicians and women's support groups.

Oona Hay, of the Rape Crisis Centre in Glasgow, said that victims often froze in fear, or were afraid to fight back because of the violence they might suffer. "In those cases it is not always necessary for the attacker to use violence to rape a woman."

The law was reviewed after the acquittal of Edward Watt, 23, a law student at Aberdeen University, who was charged with raping a fellow student who was a virgin. He denied the allegation and claimed she had consented to sex.

At his trial last year, Lord Abernethy ruled that he had no case to answer because there was no evidence of him using force or violent threats against his alleged victim.

The woman, who said she was attacked in a student flat while her flatmates were next door, told the court she repeatedly told Mr Watt she did not want to have sex, but he carried on.

She added: "I didn't know what he was capable of. It wasn't a conscious decision not to shout. I was doing what I could to get through what was happening."

But the trial judge ruled that having sexual intercourse with a woman without her consent "is not rape", adding: "The issue is whether there is sufficient evidence of the accused overcoming her will by using some degree of force or the threat of it." Following the case, the Lord Advocate, Colin Boyd QC, called for a change in the law and referred the issue to a specially-convened bench of seven judges.

Yesterday's decision at the Court of Criminal Appeal in Edinburgh - by a five to two majority - does not affect Mr Watt's acquittal and he cannot be tried again. But it will have a major impact on future rape prosecutions in Scotland.